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January 23, 1997

SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: SMITH

 This matter was referred to the undersigned for a report and recommendation by the Honorable Frederick J. Scullin, Jr., United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). Briefs were filed by the parties in accordance with General Order 43, and no oral argument was heard.

 Submission of new evidence

 Plaintiff asserts that if the court does not remand this matter solely for calculation of benefits, in the alternative it should order that the case be remanded for the consideration of new and material evidence, namely, records from Middletown Alcoholism Treatment Center relating to his admission from October 31, 1994, to November 2, 1994, following an incident during which he discharged a weapon at home while he was intoxicated. *fn1" (Pl.'s ex. 1). Plaintiff contends that this evidence reflects his medical condition during that period, discloses that he has no insight into the seriousness or extent of his drinking problem, and reflects that the problem is quite serious and not easily amenable to treatment. (Pl.'s br. at 28-29).

 Sentence six of 42 U.S.C. § 405(g) states that a court may order the Commissioner to consider additional evidence "only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. . . ." 42 U.S.C. § 405(g). The Second Circuit has summarized the requirements of section 405(g) as follows:

An appellant must show that the proffered evidence is (1) "'new' and not merely cumulative of what is already in the record," Szubak v. Secretary of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984), and that it is (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative, see Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975). The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the [Commissioner] to decide claimant's application differently. See Szubak, 745 F.2d at 833; Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981). Finally, claimant must show (3) good cause for her failure to present the evidence earlier. See Tolany v. Heckler, 756 F.2d 268, 272 (2d Cir. 1985) (good cause shown where new diagnosis was based on recent neurological evaluation and assessment of response to medication required observation period).

 Lisa v. Secretary of Dep't of Health and Human Servs., 940 F.2d 40, 43 (2d Cir. 1991) (quoting Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)) (emphasis added).

 The decision of the administrative law judge (hereinafter "ALJ") was rendered on June 17, 1994 (Rec. 30), more than four months before plaintiff's admission to the Middletown Alcoholism Treatment Center. In addition, the report makes no findings relevant to the period on or before the ALJ's decision. See 20 C.F.R. §§ 404.620, 416.330; Abreu-Mercedes v. Chater, 928 F. Supp. 386, 391 (S.D.N.Y. 1996) ("The period under examination spans from the alleged onset date through the date of the ALJ's decision."). Accordingly, plaintiff's exhibit 1 is not "material" within the meaning of section 405(g) as it does not relate to plaintiff's "condition during the time period for which benefits were denied . . . ." Lisa, 940 F.2d at 43; Abreu-Mercedes, 928 F. Supp. at 391.

 Furthermore, even if these records were "material," the court finds that plaintiff has not shown the requisite good cause for his failure to present the evidence earlier. In his brief, plaintiff states that

 (Pl.'s br. at 29) (emphasis added). While plaintiff obtained one extension from the Appeals Council for submission of additional evidence, *fn2" plaintiff just assumes that any request for a further extension would not be granted by the Appeals Council. Such an assumption is not good cause for a remand. Furthermore, it appears plaintiff did not use due diligence in obtaining the release form, executing it, and obtaining the records from the facility.

 Reopening of plaintiff's earlier application

 In his brief, for the first time plaintiff seeks a reopening of his prior application for benefits filed in January 1981. He claims he is a class member of Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995), and Stieberger v. Sullivan, 792 F. Supp. 1376 (S.D.N.Y.), modified, 801 F. Supp. 1079, 1082 (S.D.N.Y. 1992). In addition, he contends that reopening should be permitted because his August 1986 Notice of Reconsideration was constitutionally defective. Finally, he asserts that reopening is not barred by administrative res judicata. (Pl.'s br. at 25-28).

 As defendant correctly contends, however, any rights plaintiff may have under Dixon or Stieberger were not at issue before ALJ Brown, who adjudicated the application that is being reviewed in this action. Furthermore, plaintiff did not ask either ALJ Brown or the Appeals Council to reopen the prior application, and there has thus been no "final decision of the Commissioner" on this issue as required by 42 U.S.C. § 405(g). Consequently, the court will not consider the merits of plaintiff's reopening arguments. As noted by defendant, the Supreme Court has stated that "[a] reviewing court usurps the agency's function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commissioner of an opportunity to consider the matter, make its ruling, and state the reasons for its action." Unemployment Compensation Comm'n of the Territory of Ala. v. Aragon, 11 Alaska 236, 329 U.S. 143, 155, 91 L. Ed. 136, 67 S. Ct. 245 (1946). See Railway Labor Executives' Ass'n v. United States, 791 F.2d 994 (2d Cir. 1986) ("It is beyond cavil that a petitioner's failure to assert an argument before an administrative agency bars it from asserting that argument for the first time before a reviewing court.").


 Thus, at issue here are just plaintiff's applications for disability insurance benefits and supplemental security income benefits which were filed on November 5, 1992. He alleges an inability to work since February 15, 1989, due to back and neck problems, arthritis, and alcoholism. (Rec. 68-70, 104-07, 122). These applications were denied at the various levels of administrative review. (Rec. 93-96, 100-03,109-12, 114-17, 16-30, 5-6).

 The Appeals Council denied plaintiff's request for review (Rec. 5-6), so plaintiff commenced the instant action. He contends that the ALJ minimized the evidence to the point where it was meaningless, misjudged the extent of plaintiff's physical activities, ignored the evidence provided by Dr. Thajudeen and the agency's own physicians and psychologist, failed to find that plaintiff's impairments, due to alcoholic abuse and depressive disorder, precluded the performance of all occupations, failed to employ a vocational expert (hereinafter "VE") in reaching his decision, and was prejudiced toward plaintiff, as he is generally prejudiced toward individuals who have not worked. (Pl.'s br. at 10).

 After a very careful review of the administrative record and the contentions of the parties, the court finds that substantial evidence supports the defendant's final decision and that the defendant applied the correct legal standards. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Consequently, it is ...

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